Bench Memos

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Charles Krauthammer Channels Emily Litella


I admire Charles Krauthammer greatly; he’s smart, witty, so very good at making an argument.  But (you could hear that “but” coming, right?) he disappoints me this morning.  Near the end of an otherwise fine column on the “teaching moment” that the Sotomayor nomination presents for illuminating our partisan divide between the rule of law and the rule of “empathy,” Dr. K writes this:

Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds — consistently violated by the Democrats, including Sen. Obama — that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.

But there is no entitlement to such deference.  There is no such constitutional principle, no such tradition in the history of Supreme Court nominations, and no compelling reason politically or otherwise to elevate the “consequences” of a presidential election to such a level.  Every single senator is there because of an election too: do those elections not have consequences?  They owe their constituents, and their consciences, and their oaths of office, not only an argument for their understanding of the rule of law but a vote consistent with that argument.  Why throw away the argument with a vote that contradicts what you’ve just been saying?  Krauthammer’s view is that Republicans should “seize” the teaching moment, but if their intention is to vote to confirm Judge Sotomayor in the end anyway, then the whole exercise will be a bit of play-acting, understood by both sides to be a time-wasting fraud.

I’m as big an advocate of an energetic executive power under the Constitution as just about anyone I know.  (Maybe John Yoo outstrips me, but not by much.)  And if we were talking about a Cabinet or other executive-branch position, the argument for deference to the president deserves a hearing.  But for judicial nominations, especially those to the Supreme Court, I want both an energetic executive and an independent Senate reaching its own judgments.  That’s what the separation of powers is all about: each branch of government, at the apex of its potential strength, forcefully asserting its own prerogatives as a defender of the Constitution.  (The metastasization of judicial supremacy has occurred over the last half century because of a belief that really only the judges are charged with preserving the Constitution.)

Republicans may not have the votes to stop Judge Sotomayor.  And yes, I know there are some who worry that if she were stopped, the next nominee would be still worse–but I don’t buy that, for reasons I’ll go into another time.  But if they cannot stop her, it remains true that they cannot conscientiously vote for her without positive reasons to do so, independent of the president’s having chosen her.  Or else, like Dr. Krauthammer this morning, they will simply look as silly as Emily Litella on the day the confirmation vote is taken.


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